ADJ-00034169

Complainant

Respondent

Parties

Cameron  Scott

Aldi Stores (Ireland MIT) Limited

Representatives

  self

Walter Beatty Vincent & Beatty Lorna Lynch BL

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00045130-001

09/07/2021

The complainant was dismissed essentially for breaching a fundamental tenet of the employer and employee relating to trust and confidence. It is alleged that the employee in this case took products, typically juices without paying for them and it was the alleged theft of product in this case amounted to gross misconduct.

The allegations are not well founded as the complainant suffered from PTSD and the prescribed medication for this disability had a side effect that can cause forgetfulness.

A complete and exhaustive investigation took place that was fair and impartial. The area manager based on the evidence available to him made a fair and reasonable decision that the complainant did in fact take the product and that amounted to gross misconduct.

There is a lot of consensus between the parties concerning the fact that product was consumed and not paid for. It would appear based on the CCTV records and crossed checked against the till records that there were 7 incidents in total. This is not denied.

The store manager’s statement detailed 5 other incidents. This analysis detailed a pattern of consumption on the following dates:

·       25th of November 2020-toasted sandwich and energy drink

·       26th of November 2020-bottled water and coffee

·       2nd of December 2020-2 energy drinks and paid for 1

·       10th of January 2021-bottled water

·       14th of January 2021-bottled water

There is also the incident that occurred on the 6th of January 2021 that gave rise to the disciplinary investigation and another incident on the 1st of December 2020. All these events are accepted and are not in dispute. They occurred typically at the start of the early shift and in the main concerned a refreshment such as water, coffee or an energy drink.

The complainant was made fully aware of the allegations against him and their seriousness and if upheld that they amounted to gross misconduct that could lead to dismissal.

The investigation was conducted in line with good practice and the employer’s own procedures. The employee’s contract detailed that theft amounted to gross misconduct. The complainant stated that he was treated courteously and respectfully by the area manager who conducted the disciplinary investigation.

The challenge to the decision makers finding related to the fact that the complainant’s GP stated that arising from the medical treatment for Post Traumatic Stress Disorder a side effect is forgetfulness. The complainant as a young man joined the British Army and when assigned to Northern Ireland; arising from traumatic experiences while on active duty he stated that he developed PTSD. He frequently wakes up in a cold sweat and finds it difficult to sleep. The incidents regarding forgetting to pay for product occurred mainly when he was working on the early shift and the tills would not open until about 8.45am. He was mortified when it was brought to his attention that he forgot to pay. Once the store was opened he would be assigned to a busy till and having regard to his medical condition and treatment, he forgot to pay for his drinks.

The complainant as part of the investigation was referred to an Occupational Health Specialist. He concluded that on the balance of probabilities he did not believe that in the absence of corroborating other incidents of forgetfulness at work could it be concluded that the medication prescribed to him explained the failure to pay for product.

The medical concerns concerning the side effect of medication that leads to forgetfulness and any other relevant material provided to the investigating manager concerning Post Traumatic Stress Disorder was referred to the occupational medical practitioner for their view. The company medical practitioner was asked to reconsider his original opinion in the light of representations made by the complainant concerning his disability, treatment and the fact that he does forget.

Additional expert literature was submitted to the company concerning PTSD and how forgetfulness is a common symptom of this disorder. This information was also considered by the Occupational Health Physician who restated his position in a 2nd opinion that in the absence of other observable incidents while at work that the prescribed medication was not the cause of his forgetfulness.

Neither party called their respective medical practitioners to give oral evidence at the hearing. However, the complainant robustly challenged the conclusions of the company medical doctor based on the evidence that he had submitted that in his day to day work he did not experience forgetfulness. Any inference that that this was farfetched and opportunistic was denied.

The complainant’s GP stated that a side effect of taking the prescribed medication is forgetfulness. The Occupational Physician doesn’t deny this fact but stated:

I think it is a reasonable argument to make and might in certain scenarios provide an explanation for his actions at work. I note however, that he has been on this medication for many years and that, aside from his failure to pay for store products no other criticisms or observations have been made in the workplace with respect to his appearance or performance, to suggest any underlying cognitive impairment.

I also note that this happened not just in a single occasion but on multiple occasions.

In my opinion, to argue that this repeated behaviour is a manifestation of medication related forgetfulness, is stretching the argument, particular in the absence of any observations to suggest forgetfulness in other areas of his day-to-day life at work.

On balance, I am not persuaded that repeated failure to pay for goods, arising as a sole observable manifestation of forgetfulness, can be attributed to his medication.

The employer carries the burden of proof in an Unfair Dismissal Case. The employer relied on the evidence of the Occupational Health Practitioner. The GP has been treating the complainant for many years and it is a fact he has PTSD.

It is well settled law that an Adjudicator should not apply his sense of fairness to the facts of the case. As Redmond in Dismissal Law stated:

[13.28]

The Workplace Relations Commission (or the Labour Court on appeal) must not assume the mantle of an employer regarding the facts in any case before it. Its function is to decide whether, within the so-called band of reasonableness of decision-making, an employer’s decision is not unfair. The notion of a band of reasonableness was first endorsed by the Court of Appeal in British Leyland UK Ltd v Swift. 46 The Court found that there is a band of reasonableness within which one employer might reasonably dismiss an employee whilst another would quite reasonably keep him on. It depends entirely on the circumstances of the case whether dismissal is one of the penalties which a reasonable employer would impose. A dismissal is unfair if no reasonable employer would have dismissed, but it is not unfair if a reasonable employer might reasonably have dismissed.

[13.29]

The ‘band of reasonable responses’ test was articulated by Lord Denning MR:

‘The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view

In this case there is a direct conflict in the medical reports presented.

In this scenario would a reasonable employer look for another medical opinion or rely on the first opinion received?

The facts must inform that decision. The complainant does suffer from PTSD and has been treated for years by his GP and a side effect of the prescribed medication is forgetfulness. The incidents in this case in the main occurred at the beginning of the morning shift several hours before the tills opened. The reasonable manager must look at the circumstances and the medical evidence. The test set out in the Act is a very high bar. There must be substantial grounds to justify the decision. The question must be asked if there is a serious questioning of the company’s medical opinion based on another medical opinion and the evidence of the complainant and the time that these drinks were consumed, would the reasonable employer seek a 3rd opinion such as with a Psychiatrist to assess the complainant’s assertions relating to cognitive impairment before proceeding to dismiss?

The complainant stated that another employee who had taken product from the store believing the product to be out of date; however, without authority to do so, was not dismissed and their reasonable explanation accepted by the manager.

There are two questions that the Adjudicator should consider:

1.       The reasonableness of the decision by the investigating area manager when he made the decision to dismiss based on gross misconduct arising from theft having regard to the facts before him and conflicting medical opinion. 

2.       The evidence to be preferred by the Adjudicator at the hearing; where there is a clear conflict in written expert evidence and in the absence of medical expert oral testimony from either side?

I note O’Donnell J findings in Zalewski v An Adjudicator Officer [2021] IESC 24  which determined that evidence where there is a conflict evidence should be given under oath when required and the right to cross examine an accuser:

122.First, if it is correct that the adjudication officer and/or the Labour Court is engaged in

the administration of justice when making decisions pursuant to the procedures of the2015 Act in relation to questions of unfair dismissal and payment of wages (and I agree that it is),

And at paragraph 145: 145.Finally, in this regard, it is striking that the Act sets out specific procedures for the adjudication officer (and the Labour Court) to follow. Section 41(5) requires the adjudication officer to permit the parties “to be heard” and “to present evidence”. Given this enumeration of procedures, the absence of a reference to cross-examination might appear deliberate and directed towards discouraging cross-examination. The Act contemplates “evidence” being given by “witnesses” having the same privileges and immunities as witnesses in the High Court. As long ago as Re Haughey, these features of court proceedings, and the ability to cross-examine the opposing party, were regarded as fundamental to fair procedures, and the right of cross-examination (which was excluded by the procedures adopted by the Committee of Public Accounts) was one of the rights without which no party:-

“could hope to make any adequate defence of his good name. To deny such rights is, in an ancestral adage, a classic case of clocha ceangailte agus madraí scaoilte. Article 40, s. 3, of the Constitution is a guarantee to the citizen of basic fairness of procedures. The Constitution guarantees such fairness, and it is the duty of the Court to underline that the words of Article 40, s. 3, are not political shibboleths but provide a positive protection for the citizen and his good name.”

Based on the Zalewski Supreme Court Decision the Adjudicator must consider the evidence presented at the hearing as this case concerns the administration of justice. This means that it is proper for the Adjudicator to determine the evidential weight that it gives to the medical evidence before it.

The complainant under oath has stated that he experienced forgetfulness not just in work, but also in his everyday life. That forgetfulness is directly linked to the medication prescribed to treat his mental health disability of PTSD. A GP’s medical note corroborates that it is a side effect of the medication prescribed.

The manager of the store again under oath stated that he would not have operational interaction with the complainant which is reasonable as he is responsible for the entire store, but he had never observed the complainant’s forgetfulness.

I find the complainant to be a credible and honest witness. The medical evidence presented to me in fact by both parties does support his position that the medication does have a side effect that can cause forgetfulness.

The company doctor did not attend at the hearing to provide evidence that his conclusion was influenced by the fact that:

In my opinion, to argue that this repeated behaviour is a manifestation of medication related forgetfulness, is stretching the argument, particular in the absence of any observations to suggest forgetfulness in other areas of his day-to-day life at work

That statement to be relied upon when there is a direct conflict in evidence is subject to cross examination and for the complainant to be afforded an opportunity to test that conclusion. That did not occur in this case. Under the Act it is the employer who must demonstrate that they acted reasonably, that burden of proof rests with the employer.

 I accept the evidence that the complainant gave under oath that he experienced forgetfulness and  it is a daily experience both at work and at home. It is a credible explanation that it is linked to PTSD and the medication prescribed to help him better cope with his condition.

The allegation of theft is a very serious allegation and an adverse finding does have very serious and negative effects on an employee, their good name and the ability to be reemployed.

The respondent relies on section 6 of the Act and that it had substantial grounds to dismiss the employee:

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

On the evidence presented at the hearing concerning the surrounding circumstances I have concluded that the employee’s account is credible and accept his explanation of what occurred and that he did not take product rather his intent was to pay for the product when the tills opened several hours later. The circumstantial evidence such as the early start of the shift, the till being closed, his disability and the side effect of prescribed medication are consistent with that proposition. Absent of company medical expert evidence that could be cross examined and challenged by the complainant and arising from the evidential burden and onus on the employer to show that they acted reasonably at the time that the area manager made the decision to dismiss, I find that the employee was unfairly dismissed by his employer as the evidence before me does not support the employer’s position that this decision fell within the band of reasonableness. I note the learned judges remarks at paragraph 56 in Bank of Ireland v Reilly [2015] IEHC 241:

56. In assessing the reasonableness of the employer’s conduct in relation to the dismissal herein, it seems to me that such an assessment must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer’s response.

Reasonableness must be considered as set out in Bank of Ireland v Reilly [2015] and not to refer the complainant for another expert medical opinion when so much rested on that decision for the employee was not reasonable having regard to the factual matrix of this case and whether or not he experienced forgetfulness in daily life arising from PTSD.

I have determined based on the evidence presented that the complainant was Unfairly Dismissed.

On the evidence presented at the hearing I have concluded that the employee’s account is credible and accept his explanation of what occurred and that he did not take product rather his intent was to pay later and forgot to do so. The circumstantial evidence such as the early start of the shift, the till being closed, his disability and the side effect of prescribed medication are consistent with that proposition. Absent of company medical expert evidence that could be cross examined and challenged by the complainant and arising from the evidential burden and onus on the employer to show that they acted reasonably at the time that the area manager made the decision to dismiss, I find that the employee was unfairly dismissed by his employer as the evidence before me does not support the employer’s position that this decision fell within the band of reasonableness. I note the learned judges remarks at paragraph 56 in Bank of Ireland v Reilly [2015] IEHC 241:

56. In assessing the reasonableness of the employer’s conduct in relation to the dismissal herein, it seems to me that such an assessment must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer’s response.

Reasonableness must be considered as set out in Bank of Ireland v Reilly [2015] and not to refer the complainant for another expert medical opinion when so much rested on that decision for the employee was not reasonable having regard to the factual matrix of this case and whether or not he experienced forgetfulness in daily life arising from PTSD.

The Act requires that I consider the appropriate form of redress. The overriding motive of the complainant in bringing this case was to clear his name. The fact is that these proceedings and the investigation have been very stressful. This must be viewed in the context on the complainant’s disability. The employer based on the evidence before it does not have trust and confidence in him. That also is very important to the employee. Therefore, I do not consider that in this case reinstatement or re-engagement are appropriate.

The employer stated that the employee could have appealed the area manager’s decision; however, the fact is he was dismissed and that process in turn would amplify his stress.

The employer has stated that the complainant has not mitigated his loss. While I have determined that the complainant was unfairly dismissed, the circumstances in this case also must be considered when determining the amount of financial loss to be awarded. The effects of dismissal on this complainant are significant based on his medical condition. Under oath he stated that he looked for work and to date has not been successful. The reality is he lives in a small community where the circumstances of the dismissal would have a negative impact on his ability to find any employment. The Act does prescribe in some detail how financial loss should be determined. It also provides that the adjudicator should assess both the conduct of the employee and employer when calculating the amount to be awarded.  While the employee’s forgetfulness maybe caused by medication prescribed for treating PTSD or arises because of PTSD, in the context of a retail store and the number of occasions that he did forget, must limit the award that can be made, based on the employee’s carelessness and responsibility to compensate for his forgetfulness by making a note or asking a work colleague to remind him to pay for product that he had consumed. In these circumstances I award the employee 26 weeks compensation which amounts to €7500 gross pay.

Theft-PTSD-Prescribed Medication-Burden of Proof